Tips for protesting unemployment claims in Oklahoma
Now that we’re all coming up from air from dealing with everything and anything COVID-related, let’s revisit some of the more mundane day-to-day basics. You’ve probably been through it so many times that it’s practically second nature: you get notice that a former employee has filed a claim for unemployment benefits, and it’s time to respond. You had good grounds for termination, sure. But you must take care to properly present them to the Oklahoma Employment Security Commission (OESC) in a timely and effective manner.
Here are some tips to follow when responding to a claim for benefits:
- Take time to fully document any investigation and gather all evidence. You did the work, make it work for you. You’ve got a limited period of time to submit your claim. Make sure that prior to filing any protest you have reviewed your investigation, and taken any and all steps necessary to fully document the reason(s) for termination, gather relevant evidence (including emails and text messages), assemble sworn, signed witness statements, etc.
- Submit a full and complete response opposing the claim for benefits. It’s tempting to dash off a quick and dirty response to a claim for benefits, particularly if you’re under water on other fronts. Don’t skimp. Don’t hold back. Go ahead and provide all relevant evidence at the initial protest stage, including any relevant documents. The more detail, the more credible your version of events. If the protest continues forward to an administrative hearing, the hearing officer will often be required to gauge the credibility of the parties before her. An employer who appears at a hearing armed with “new” information not previously presented to the OESC may find itself on the receiving end of some skepticism, and having to justify its failure to submit the evidence earlier.
Quick Tip: Employers can submit written coworker or other witness statements anonymously, at least at the early stages of a protest. While any written statement should contain the printed name and signature of the individual providing the information, it is permissible to redact the name of the individual before providing it to the OESC. However, the employer should disclose the name of the witness, or having the witness participate at the hearing.
- Use magic language. The Oklahoma Employment Security Act is full of “magic” language. For example, we all know that an individual will be disqualified from receiving benefits if he or she is terminated due to “misconduct.” And we have a general understanding of what that means. However, the Act specifically defines “misconduct” and gives specific examples of acts or omissions constitute “misconduct.” See Okla. Stat. tit. 40, § 2-406. Similarly, an individual will be disqualified from benefits if he leaves work voluntarily without “good cause” connected to the work. The Act describes exactly what constitutes “good cause.” See Okla. Stat. tit. 40, § 2-405. Consult these statutes when preparing your response. Tell the OESC, in no uncertain and statutory terms, exactly why a claim should be denied. When you speak the lingo, you signal to the OESC that the decision to protest a claim is fully informed. You also define the issue for the OESC, and may even back the OESC representative into a bit of a corner….
- Reference any evidentiary burdens. When it comes to claims for misconduct, the Act also sets forth evidentiary burdens that are to be followed when considering a claim and a protest. The employer must prove that “misconduct” occurred, and it must do so by “providing a signed affidavit, or presenting such other evidence which properly demonstrates the misconduct which resulted in the discharge.” If the employer does so, the claimant must “prove that the facts are inaccurate or that facts as stated do not constitute misconduct as defined by this section.” Failure to do so should result in a successful protest. Be familiar with this framework. Cite to it at the end of any telephonic hearing.
You’re never guaranteed a win, but following these steps can put you in the best position possible to receive a favorable Order of Determination, or to present your evidence at an administrative hearing.
For assistance in responding to unemployment claims, please contact your McAfee & Taft Labor and Employment Group attorney.